IN THE MATTER OF THE ONTARIO HUMAN RIGHTS CODE
R.S.O. 1970 c. 318, as amended
MINISTRY OF LABOUR
OCT 3 1980
IN THE MATTER OF a complaint made by Ms. Elizabeth Cinkus
of Downsview, Ontario, alleging discrimination in employ-
ment by Diamond Restaurant and Tavern and Mr. George
Georgacopoulos (also known as George Poulos) and Elizabeth
Moutoulos, 1718 Jane Street, Toronto, Ontario.
BOARD OF INQUIRY
Professor Ian A. Hunter
Mr. Peter Jacobsen: Counsel for the Ontario Human Rights
Commission and the complainant,
Ms. Elizabeth Cinkus.
Mr. Chris Georgacopoulos: Agent for Diamond Restaurant and Tavern
and Mr. George Georgacopoulos
(1 ) Appointment 2
(2) Complaint 3
(3) Facts 4
(4) Decision 13
(5) Remedy 13
Digitized by the Internet Archive c
(1 ) Appointment
On April 15, 1980 I was appointed by the Honourable Robert Elgie,
Minister of Labour, as a Board of Inquiry under the Ontario Human Rights
Code to hear and decide the complaint of Ms. Elizabeth Cinkus of
Donwsview, Ontario alleging discrimination in employment by Diamond
Restaurant and Tavern and Mr. George Georgacopoulos (also known as
George Poulos) and Elizabeth Moutoulos, 1718 Jane Street, Toronto,
On September 17, 1980 a hearing was held in the City of Toronto.
At the outset both Mr. Jacobsen, appearing for the Commission and the
complainant, and Mr. Chris Georgacopoulos, appearing for Diamond Restaurant
and Tavern and Mr. George Georgacopoulos, indicated that they were ready
to proceed. The first witness was called; he was examined in chief by
Mr. Jacobsen and cross-examined by Mr. Chris Georgacopoulos. After
cross-examination, Mr. Chris Georgacopoulos made a motion that the Board
adjourn in order that the respondent might have an opportunity to retain
counsel. Not until this motion was the Board aware that Mr. Chris
Georgacopoulos was not himself a lawyer.
In opposition for an adjournment, Mr. Jacobsen contended that it
would cause serious inconvenience to the complainant and to six other
witnesses, all of whom had been subpoened to attend the hearing on
September 17, 1980. His position was that the respondent had had
adequate opportunity to retain counsel and had been advised in fact to
do so on more than one occasion by Commission personnel, and that in
these circumstances the hearing should proceed.
After noting that the respondents had had a copy of Ms. Cinkus's
complaint since May 1979, and that the Commission had attempted to
persuade the respondent to retain counsel in preparation for the hearing,
and that the Notice of Hearing was dated July 23, 1980, I concluded that
the respondent had had ample opportunity to retain counsel in advance of -
this hearing had they wished to do so and that, given the balance of
inconvenience to witnesses, to the complainant, to counsel for the
Commission, and to the Board, the matter should be decided and the
hearing proceed on September 17. Accordingly, Mr. Chris Georgacopoulos's
request for an adjournment was denied.
(2) The Complaint
On April 19, 1979 Ms. Elizabeth Cinkus attended at the offices of
the Ontario Human Rights Commission at 400 University Avenue in Toronto
and there filed a complaint alleging discrimination in employment against
Diamond Restaurant and Tavern because of her sex contrary to the Ontario
Human Rights Code.
An amended complaint, identifying the respondents with greater
particularity, viz., "Diamond Restaurant and Tavern, it agents and
servants, 1718 Jane Street, Toronto, Ontario and George Georgacopoulos ,
also known as George Poulos, and Elizabeth Moutoulos" was signed by
the complainant on January 17, 1980 and introduced and filed as an
exhibit at the Board of Inquiry. This complaint alleges a violation
of sections 4(1) (a) and (b) of the Ontario Human Rights Code.
The clear, uncontradicted evidence at the Board of Inquiry was
that Diamond Restaurant and Tavern is owned by George Georgacopoulos.
Elizabeth Moutoulos is a daughter of George Georgacopoulos, the owner,
who from time to time works in the restaurant as a waitress. She was
not called as a witness by either side. On the evidence before me,
I find that Elizabeth Moutoulos was neither an owner nor an agent of
the owner and the complaint in respect of Miss Elizabeth Moutoulos is
(3) The Facts
The complainant Elizabeth Cinkus was trained in food preparation
and cooking in Yugoslavia; she received three years' training in a
cooking school in that country. She completed the cooking course in
1957. For the next nine years she worked in food preparation and
cooking, first of all in a hospital in Yugoslavia, and then briefly
in an itinerant settlement camp for immigrants in Germany. She came
to Canada in 1966 and has worked as a cook or a chef since that time.
From 1973 to 1978 she was employed by Mr. Harold J. Martin at the
Nosherai Restaurant in the Yorkville Shopping Centre. Mr. Martin was
called as a witness and gave evidence as to Ms. Cinkus's performance of
her duties; she was in charge of banquets and he described her as "...a very
good banquet chef." (transcript, p. 4). Filed as an exhibit was a
reference which Mr. Martin had written for Ms. Cinkus (a letter written
before Ms. Cinkus had any contact with Diamond Restaurant giving rise
to this complaint).
The letter reads:
"To Whom It May Concern:
This is to certify that Elizabeth Cinkus has been in our
employ from the 12th of June, 73 to the 13th of August,
78. She was employed as our Banquet Chef handling the
preparation and decoration of all kinds of ethnic and
Canadian foods. Mrs. Cinkus is an excellent cook and
handles her duties to our full satisfaction. Mrs. Cinkus
left of her own volition."
Ms. Cinkus explained that she left this employment when the
restaurant moved from its Yorkville location to 6900 Airport Road
because daily transportation from where she lived was too difficult,
apparently necessitating five bus transfers. After Nosherai, she was
briefly employed as a cook by T. Eaton Company, and then by Diana Sweets,
in each case leaving because the salary was not commensurate with her
There was considerable evidence led to establish that Ms. Cinkus
was a skilled cook and a conscientious employee. In addition to
Mr. Martin's oral evidence and letter of reference, additional letters
of reference were filed from two previous employers (James Cook Hotel
and Papa Doc's; Exhibit 13) and some newspaper stories attesting to
Ms. Cinkus's culinary abilities. Although this was hearsay evidence,
the complainant's competence as a cook or chef was not seriously
challenged, and I find as a fact that she was well qualified for the
position for which she applied at Diamond Restaurand in April 1979.
Ms. Cinkus testified that she first became aware of a chef's
position at Diamond Restaurant through a newspaper advertisement. She
called the restaurant and asked for the manager to enquire about the job.
An unidentified female person allegedly told her: "No job for a woman."
In cross-examination, Ms. Cinkus gave the unidentified woman's response
as: "We're looking for a chef but not for a woman." Ms. Cinkus was
unable to give the exact date of this telephone call but she said that
it was a few days before Canada Manpower sent her over to Diamond
Restaurant (which was on April 18, 1979).
Shelley Giardino, an employment counsellor with the Canada Manpower
centre at 1747 Jane Street, gave evidence. She identified two job order
forms. These are forms which are completed by Canada Manpower officials
when an employer solicits their assistance in finding a suitable employee.
The first job order form (Exhibit 10) is dated April 3, 1979, identifies
the employer as Diamond Restaurant, 1718 Jane Street, Weston, and the job
as "chef". Salary is given as "$240 plus depending on experience";
requirements "experienced, clean and neat" and the duties specified are
"chef, sixty seat restaurant, make gravies and sauces." The form also
has a box with the heading "apply to" and it indicates "Jim--direct. "
According to Ms. Giardino's testimony Canada Manpower records established
that this job was filled by a "walk-in" (which means, apparently, someone
other than an applicant referred by Canada Manpower) and that this job
order was subsequently cancelled.
An identical job order form (Exhibit 11) was filled out on April 17,
1979, again seeking an experienced chef and again containing the notation
"apply to: Jim--direct. "
On April 18, 1979 Ms. Cinkus attended at the Canada Manpower Centre
and spoke there with Mrs. Margaret Wurdemann. Mrs. Wurdemann informed
Ms. Cinkus of the chef vacancy at Diamond Restaurant and gave her the job
referral notice (Exhibit 4). Ms. Cinkus expressed some reluctance to go
over to Diamond Restaurant (which is very close to the Canada Manpower
Centre) because of her experience in telephoning the restaurant a few days
before and being told that the job was not for a woman. In any event, at
Mrs. Wurdemann's suggestion, she did go.
On entering the restaurant, Ms. Cinkus testified that she saw two
woman one of whom appeared to be a waitress. This woman, together with
a man she identified as George Georgacopoulos, approached her and she
asked for the manager, at the same time indicating that she was interested
in the chef job. She showed the job referral notice which she had obtained
at Canada Manpower to George Georgacopoulos. Her evidence was that he sat
down, looked at the form, and told her that the job was not for a woman but
for a man. He then showed the paper to the woman, who appeared to be an
employee working in the restaurant, and the woman allegedly said that the
restaurant had never had a woman chef before.
At this point, Ms. Cinkus left, returned to Canada Manpower, and
related what had happened to Mrs. Wurdemann. Mrs. Wurdemann then referred
Ms. Cinkus to the Operations Supervisor, Mr. Richard Dellabella, who
advised Ms. Cinkus to file a complaint with the Ontario Human Rights
In cross-examination, the respondent made much of the fact that the
job order form stated "apply to: Jim--direct" and the job referral form:
There is no doubt that when Ms. Cinkus went to Diamond Restaurant on
April 18, 1979 she did not ask for Jim but instead for "the manager." In
my opinion, nothing turns on this: clearly, she requested to speak with
a person in authority (i.e., the manager) and immediately indicated to
the person she spoke to, Mr. George Georgacopoulos , that she was there
about' the chef job. In fact, she spoke with the owner and he told her that
the position was not for a woman. The "Jim" referred to in the referral
form is actually the owner's son, Jim Poulos, who originally placed the
job order form with Canada Manpower. In the course of giving his evidence,
Mr. Jim Poulos describes his duties as "everything; I do everything there.
When my brother is not there, I do managing... I look after the bar, the
kitchen, everything, staff." Accordingly, Ms. Cinkus' s request to speak
to the manager could be construed as rough compliance with the form since
Jim Poulos was, at least in part, a manager of Diamond Restaurant.
The following day, April 19, 1979, Shelley Giardino of the Canada
Manpower Centre telephoned Diamond Restaurant and spoke to an unidentified
male person. She enquired as to the reason for Ms. Cinkus 's failure to
obtain employment and, receiving no satisfactory reply, indicated that
unless the manager phoned her back with some satisfactory explanation
the job order that had been placed with Canada Manpower would be cancelled
because of alleged sex discrimination. She received no call back from
Diamond Restaurant and the job order was in fact cancelled.
The respondent's explanation for Ms. Cinkus's treatment at Diamond
Restaurant on April 18, 1979 was that it was all "a misunderstanding"
arising from the fact that Ms. Cinkus spoke to Mr. George Georgacopoulos,
the owner, instead of Mr. Jim Poulos, one of the owner's sons. Mr. George
Georgacopoulos, it was alleged, had considerable difficulty understanding
and communicating in English and "the misunderstanding" was attributed
essentially to language difficulties.
For the following reasons, I reject this explanation:
(1) Ms. Cinkus's evidence was that she had no difficulty conversing
with Mr. George Georgacopoulos on April 18, 1979 and that he clearly
communicated the reason why she was not to be considered for employment:
namely that the job was for a man and not for a woman. I observed
Ms. Cinkus closely when she gave her evidence and I am satisfied that
she was telling the truth.
(2) Two Human Rights officers, Messrs. Kirtna and Caffrey testified
as to a meeting they had with Mr. George Georgacopoulos on May 7, 1979 at
which time he appeared capable of understanding and communicating in
(3) A language problem is more likely, in my opinion, to have
manifested itself by confusion, uncertainty, perhaps even rudeness.
Ms. Cinkus observed none of these things. Instead, her evidence is that
she was told, unequivocally and bluntly, on two occasions on April 18,
1979 by two different persons in Diamond Restaurant, that the job was
not for a woman.
Mr. George Georgacopoulos was present at the Board of Inquiry but
did not give evidence so that I had no firsthand opportunity to assess
his proficiency, or lack thereof, in English.
After Ms. Cinkus filed her complaint with the Commission, Mr. Aarne
Kirtna, who was then a human rights officer in the employ of the Ontario
Human Rights Commission, attended at Diamond Restaurant on May 3, 1979
and left a copy of the complaint with Elizabeth Moutoulos who identified
herself as the daughter of the owner, George Georgacopoulos. Mr. Kirtna
also arranged to meet with Mr. Jim Poulos on May 7, 1979.
At the May 7, 1979 meeting Mr. Kirtna, together with his supervisor
Mr. Colm Caffrey, met with both George Georgacopoulos and Jim Poulos at
Diamond Restaurant. Each gave a slightly different explanation of why
Ms. Cinkus was not hired. Mr. George Georgacopoulos allegedly said that
he told Ms. Cinkus to come back when his son, Jim [Poulos], was present.
Jim Poulos, however, told the officers that they had hired a chef named
"Jerry" so that the position which Ms. Cinkus applied for had already been
filled. When the human rights officers requested further information about
"Jerry" such as his address and the date on which he commenced employment,
Jim Poulos said that he could not provide this information because the
company's books were not quite up to date. However, he promised the
officers that he would have such information if they returned on May 10, 1979.
The same two officers did return on May 10, 1979 at which time
Jim Poulos stated that he had no documentation concerning "Jerry," nor
could he give precise employment dates. Jim Poulos did, however, take
the officer to the kitchen area and showed them a large, heavy tureen of
soup, explaining that a chef would have to be able to lift it from floor
to stove, a distance of approximately three and a half feet. In fact, he
invited Officer Kirtna to try lifting it. The officer did lift it and,
in his evidence, described it as "heavy."
I mention this incident because it was the only evidence, if such
it can be called, which might conceivably go to a defence based upon
section 4(6) of the Code. Section 4(6) states: "The provisions of this
section relating to any discrimination, limitation, specification or
preference for a position or employment based on. . .sex. . .do not apply
where. .. sex. .. is a bona fids occupational qualification and requirement
for the position or employment."
Clearly there is insufficient evidence on which to base a finding
that being male was "...a bona fide occupational qualification and
requirement for the position or employment" as chef at Diamond Restaurant
and, to their credit, the respondents did not contend this.
In giving evidence, both Jim Poulos and Chris Georgacopoulos stated
that Diamond Restaurant had never had a female chef (although they had had
female dishwashers, kitchen help, waitresses, etc.); however, Chris
Georgacopoulos said that the restaurant would hire anyone, male or female,
who was competent, qualified and could perform the work involved.
In his evidence Mr. Chris Georgacopoulos explained that prior to
April 1979 most of the chef work at Diamond Restaurant had been done
by another brother, Nick Georgacopoulos. However, Nick decided to get
married and go to Europe for a honeymoon. Accordingly, he contacted
Canada Manpower to put in the job order on April 3, 1979 (Exhibit 10)
seeking a full-time chef. At the Board of Inquiry Mr. Chris Georgacopoulos
produced payroll and employment records which showed that the man referred
to by Jim Poulos as "Jerry" was, in fact, Larry Savvis, and that he
commenced employment on May 4, 1979 and ceased his employment on June 4, 1979.
At various times, the respondents put forward three possible explana-
tions for Ms. Cinkus's failure to obtain employment as a chef when she
applied at Diamond Restaurant on April 17, 1979:
(1) A "misunderstanding" due to language difficulties of George
Georgacopoulos. For reasons previously given, I reject this explanation.
(2) The faint suggestion (and it was no more than that) that a
woman might not be strong enough to lift the soup tureen from the stove
to the floor. As the respondents themselves admitted, this would depend
on the strength of the particular woman and, in Ms. Cinkus's case, she
was never given an opportunity to try. Accordingly, there is no basis
for a defence pursuant to s. 4(6).
(3) During the investigation of Ms. Cinkus's complaint, Jim Poulos
suggested to Commission officers that Ms. Cinkus was not hired because
"Jerry" (or Larry Savvis) was already employed. However, the company's
own payroll records confirm that Larry Savvis did not commence his
employment until May 4, 1979. Ms. Cinkus applied on April 18, 1979,
approximately two weeks before that. Mr. Jim Poulos, on cross-examina-
tion, conceded that Diamond Restaurant did not have a full-time chef
on April 18, 1979 and that they were in fact looking for a chef when
Ms. Cinkus applied (transcript; page 150 and 152).
On all the evidence presented at this Board of Inquiry, I am satisfied
that on April 18, 1979 Diamond Restaurant, acting through its owner,
Mr. George Georgacopoulos, discriminated against Elizabeth Cinkus in
refusing to employ her for the position of chef because of her sex
contrary to section 4 of the Ontario Human Rights Code.
Once a Board of Inquiry has decided that any party has contravened
the code, section 14(c) (b) provides that the Board may "...order any
party... to do any act or thing that, in the opinion of the Board, consti-
tutes full compliance with such provision and to rectify any injury caused
to any person or to make compensation therefore."
Insofar as possible, the order of the Board should attempt to put
the complainant in the position she would have been in but for the illegal
Ms. Cinkus made it clear that she has no wish now to obtain employment
at Diamond Restaurant. She is presently employed as a chef at Tri -Bel 1
Country Club in Thornhill.
When Ms. Cinkus applied at Diamond Restaurant on April 18, 1979 she
was unemployed. Although she continued to look for work, she was not
subsequently employed until she was hired as a cook by the T. Eaton Company
on August 7, 1979. Thus, she was without salary for a period of nearly
four months and, following precedents established by other Boards of Inquiry,
I might well have ordered that she be compensated for lost salary
throughout that four month period.
However, Mr. Jacobsen very fairly conceded that he would accept the
evidence of Chris Georgacopoulos to the effect that his brother Nick
resumed the chef duties on his return from honeymoon in Europe and that,
at that time, Ms. Cinkus might have been let go in favour of Nick.
Accordingly, Mr. Jacobsen requested five weeks' compensation for lost
•salary; specifically, five weeks at $240 per week--the minimum salary
specified in the Canada Manpower job order form. I believe that this is
eminently fair and I order the respondent to compensate the complainant in
the amount of $1200 for lost wages resulting directly from the discriminatory
Mr. Jacobsen further submitted that I should make an award of several
hundred dollars by way of general damages for the inconvenience and
humiliation caused to Ms. Cinkus by the discriminatory act. In support of
my authority to make such an award he cited several previous Board of
Inquiry decisions. (Cf. Shack v. London Dri v-Ur-Sel f ; June 7, 1974;
Gabidon v. Golas , July 9, 1973).
When Ms. Cinkus was asked why she made a complaint to the Ontario
Human Rights Commission, she testified as follows: "Why I made complaint?
At this time I leave my job and I never got before trouble, I mean to
find a job and this time I really had to find a job and I feel really
bad when I go ahead and they say they don't take a woman, I feel so low.
I say 'What's a woman can't be a chef any more in this country?' and that's
why I go ahead and complain it." (transcript p. 39).
I am satisfied that Ms. Cinkus was upset and hurt by the illegal
discriminatory act of the respondent. However, I am also satisfied that
the respondent did not act vindictively or maliciously. On the evidence,
I find that there was no intent to humiliate or wound Ms. Cinkus 's
dignity or spirit and that part of the problem may have stemmed from
language difficulties. Also, there would appear to be a lack of communica-
tion, initially between Mr. George Georgacopoulos and his sons, and then
subsequently between Mr. George Georgacopoulos and the complainant
Accordingly, I do not intend to award substantial general damages.
I hereby order the respondents to compensate Ms. Cinkus in the amount
of $150 for injury to dignity, reputation and feelings arising from the
Section 14(b)(1) defines the parties to a proceeding before a Board of
Inquiry and includes "(a) the Commission, which shall have the carriage of
the complaint." On behalf of the Commission, Mr. Jacobsen requested the
inclusion of three terms in any order that this Board might make:
(1) that the respondent be required to write a letter to the Commission
indicating his intention to comply fully with Human Rights legislation in
(2) that the respondent be required to post Human Rights Commission
cards on his premises; and
(3) that the respondent be required to notify the Commission of all
employment vacancies at Diamond Restaurant, prior to public advertisement,
for a period of one year.
I realize that such terms have often been included in the orders of
Boards of Inquiry appointed under Human Rights legislation in the past.
Nevertheless, I decline to include any of these terms since I regard them
all as offensive to the respondent's fundamental liberty. Everyone in this
country is under a duty to obey the laws of the jurisdiction in which they
reside; a letter to the Commission indicating the respondents intention to
abide by the Ontario Human Rights Code is superfluous; similarly, the
posting of Code cards. Nor do I believe that one past violation of the
Code, for which recompense has been made in accordance with a Board's
order, should so stigmatize the respondent's conduct in future that he is
made to submit employment vacancies to a government agency for some type of
However, since the Commission is a party and since the burden of
enforcing a Board's order falls on the Commission, I order the respondents
Diamond Restaurant and Mr. George Georgacopoulos, to notify the Chairman
of the Ontario Human Rights Commission in writing when they have paid
$1,350 to the complainant in order that the Commission may be satisfied
that compliance with the Board order has occurred.
IN THE MATTER OF THE ONTARIO HUMAN RIGHTS CODE,
R.S.O. 1970 c. 318, as amended
IN THE MATTER OF a complaint made by Ms. Elizabeth Cinkus
of Downsview, Ontario, alleging discrimination in
employment by Diamond Restaurant and Tavern and Mr. George
Georgacopoulos (also known as George Poulos) and Elizabeth
Moutoulos, 1718 Jane Street, Toronto, Ontario.
This matter coming on for hearing on the 16th day of
September, 1980, before this Board of Inquiry, pursuant to
the appointment of Robert Elgie, Minister of Labour, dated
the 15th of April, 1980, in the presence of Counsel for the
Commission and the complainant, and an agent for the
respondent, upon hearing evidence adduced by the parties and
what was alleged by the parties, and upon finding that the
complaint was substantiated by the evidence:
IT IS ORDERED THAT
(1) the respondent pay to the complainant the sum of
one thousand three hundred and fifty dollars ($1350.00) as
compensation for wages lost, and injury to dignity, reputation
and feelings as a result of the discriminatory act; and
(2) the respondent notify the Chairman of the Ontario Human
Rights Commission in writing when it has complied with the Board'
order by the payment of $1350 to the complainant.
Dated at the City of London in the County of Middlesex
this 23rd day of October, 1980.
/AN A. HUNTER
BOARD OF INQUIRY